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March 18, 1999


The opinion of the court was delivered by: Siragusa, District Judge.


This action was brought by the plaintiff, Richard Baker, who alleged that he was unlawfully terminated from his position with the County of Monroe's Environmental Services Division in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, and the New York Human Rights Law, N.Y. Executive Law § 296. The case is before the Court on the defendant's motion for summary judgment [10] filed on December 1, 1998. The plaintiff filed responding papers consisting of the plaintiff's unsworn statement and a memorandum of law and the defendant filed a reply memorandum. The case was argued before the Court on February 18, 1999. For the reasons stated below, the defendant's motion is granted and the case is dismissed.

Factual Background

The Local Rules of Civil Procedure require the moving party, here the defendant, to file a statement of undisputed material facts with his moving papers. The opposing party, here the plaintiff, is then required to file a statement indicating which of the facts alleged by the moving party are in error. In this case, the moving party has filed such a statement, but the plaintiff has not contested any of those facts as required by the local rules.

The plaintiff was hired by Monroe County as a laborer on November 20, 1979 and worked his way up the promotion ladder to become a Labor Foreman I in the Department of Environmental Services on June 27, 1994. Baker aff., at 1; Riley aff., at 1. He held that position until he was terminated by the defendant on December 2, 1994. Def. Stmt. Undisp. Facts, at 1. The plaintiff had suffered an injury to his back and was out of work from February 9, 1993 until April 15, 1994. Def. Stmt. Undisp. Facts, at 5. He had previously been out of work from March 19, 1991 until April 3, 1991 for another injury and, in both cases, he received worker's compensation. Prior to returning to work in April 1994, the defendant advised the plaintiff it was scheduling a pre-termination hearing as required by N.Y. Civil Service Law section 71. Def. Stmt. Undisp. Facts, at 8. This law allows a County employee at least a one-year leave of absence due to disability. The hearing took place on March 3, 1994 and a decision was postponed to permit the plaintiff to be reexamined by his doctor on April 7, 1994. In April, the plaintiff was cleared by his doctor to return to work and, because of a restructuring in the Environmental Services Department, the plaintiff was assigned to a position in the supply room for a sewage treatment plant. He retained his pay grade. The position was primarily indoor work, whereas his previous position has been outdoor work. Def. Stmt. Undisp. Facts, at 9.

According to the defendant's representations, the plaintiff's work in the supply room was less demanding than his outdoor field work as a Labor Foreman I; however, on October 7, 1994, the plaintiff again suffered an injury to his back in the same place he had injured it in 1991 and 1993. Def. Stmt. Undisp. Facts, at 10. The County held another pre-separation hearing*fn1. Another pre-separation hearing was held on November 21, 1994. The plaintiff's physician, William W. Cotanch, M.D., opined that the plaintiff should remain out of work on total disability. Def. Stmt. Undisp. Facts, at 10.

According to the defendant, the plaintiff was entitled to reinstatement to his former position for a one-year period following his December 2, 1994 termination*fn2, "once he was certified able to return to work in his former capacity as a Labor Foreman I." Def. Stmt. Undisp. Facts, at 11. The plaintiff applied for reinstatment on April 29, 1995 and enclosed a note from Dr. Cotanch indicating he was restricted to lifting no more than 40 pounds and could not perform repetitive bending. Richard Baker letter of Apr. 29, 1995 to Terry Vittore (Riley aff., Exhibit C).

While the plaintiff was out of work in 1993 and 1994, the sewer maintenance operation was reorganized into three sewer maintenance teams. Def. Stmt. Undisp. Facts, at 6-7. Whereas the plaintiff had been in the cleaning group which performed only sewer cleaning, now the teams were also tasked with the two other operations: construction and technical services. Thus, a Department of Environmental Services employee now had to have three sets of skills and perform three functions instead of one. The requirements for manual labor, bending, pushing, pulling and lifting up to 100 pounds did not change. Def. Stmt. Undisp. Facts, at 8.

Although the plaintiff's complaint shows that his cause of action is for wrongful termination, at oral argument he stated that the basis for his suit was wrongful refusal to reinstate him. In either case, the defendant points out that at no time prior to his termination in December of 1994 did the plaintiff request a reasonable accommodation. Def. Stmt. Undisp. Facts, at 12.

Summary Judgment Standard

The law on summary judgment is well settled. Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 106 S.Ct. 2548, 2555 (1986). Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed. R.Civ.P. 56(f). Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). The court, of course, must examine the facts in the light most favorable to the party opposing' summary judgment, according the non-moving party every inference which may be drawn from the facts presented. Internationa1 Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). It is equally well settled that in diversity actions, such as the one at bar, "federal court, sits and operates as if it were a state court, and must apply state substantiative law." Smith v. Bell Sports, Inc., 934 F. Supp. 70 (W.D.N.Y. 1996).



Jurisdiction in this Court is predicated on the Americans with Disabilities Act, 42 U.S.C. § 12117 and 28 U.S.C. § 1331 and 1343 with supplemental jurisdiction for the New York Human Rights law claim.

New York Human Rights Cause of Action

The Court will first address the state Human Rights claim. The plaintiff concedes that he has never filed a notice of claim against the County as required by New York law, but argues that the County had actual notice in July of 1995 by virtue of its receipt of the Equal Employment Opportunity Commission ("EEOC") complaint, well within the 90 days from the May 1995. denial of ...

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